There is no explicit copyright notice in the email text, on the photograph or in the metadata. In other words, no explicit conditions attached.

Could the sending of that email give the dive operator implicit permission or any other right to publish the photograph on their site (hosted in the USA) to promote one of their courses?

If no, any quality references to back this up?

Thanks!

Generally a transfer or exlcusive license of copyrighted material needs to be in writing (your images are copyrighted by definition even without an express notice or metadata, though it is always a good idea to mark them somehow), while lesser transfers (a non-exclusive right transfer/license) does not necessarily need to be in writing. If a case goes to Court, the Court can determine that there is an implied license to use the material. That being said, it will be more in the instance where equity and the facts dictate that there is an implied license. For instance, someone hires you to write a software program for an internal accounting system, no agreement is signed, the software is installed and later on there is an issue where they say you can't use the software and it violates their copyright. Basically the lesson on that is always get some kind of writing.

As to your case, from what you describe, it sounds like that it may come down to what was in your email that you sent and what were the other circumstances. If someone was a guest on a dive boat, took a picture of a DM and sent the picture to the DM with a simple note saying hi, it sounds like there is no implicit license. If the DM was the owner, said something like "you can dive free for the next three days if you send me some images." then it is starting to move into the area where there could be some implication.

EDIT: The repsonse to the DMCA will address what they think happened and why they think they do not need a license or permission.

Thanks. The DMCA counter-claim effectively says that they assume a right to publish because conditions weren't expressed in the original email. Nothing was said on the day and the text in the email was similar to my original post. They drag in the fact that their employee didn't sign a model release for the video being shot but I see that as a smokescreen and a separate issue.

Thanks. The DMCA counter-claim effectively says that they assume a right to publish because conditions weren't expressed in the original email. Nothing was said on the day and the text in the email was similar to my original post. They drag in the fact that their employee didn't sign a model release for the video being shot but I see that as a smokescreen and a separate issue.

The model release is a seperate issue and a smoke screen, at least as far as your copyright is concerned. You may need a release prior to using the material, but that is seperate from copyright. There is no assumed right to publish based on what you have said as the situation, even if there are no conditions expressed.

Thanks. The DMCA counter-claim effectively says that they assume a right to publish because conditions weren't expressed in the original email. Nothing was said on the day and the text in the email was similar to my original post. They drag in the fact that their employee didn't sign a model release for the video being shot but I see that as a smokescreen and a separate issue.

Unless the person is completely recognizable, you don't necessarily need a model release. Wearing dive gear generally results in the model's face being pretty covered over. And that only really applies if you're selling the video and the usage involved. As far as I know...

Unless you gave them permission to use the photo they can't use it, saying that you didn't say they couldn't use doesn't wash. Otherwise anyone could use anything anytime someone didn't explicitly say they couldn't...and the copyright law is very clear on creator's copyright before publication.

I don't think they have a leg to stand on and it sounds like they are hoping you back down. Just because there are no signs in a grocery store saying "no shoplifting" it doesn't mean if the clerk says "try this cereal" that you can walk out of the store with it.

The model release issue is surely a smoke screen. At least in the States, if you are standing in a public space you can shoot anyone you want, recognizable or not, so long as you don't publish it commercially. You certainly can publish it editorially.

Maybe you can find an answer to your question here. If they don't take it down you may have to get an attorney. I'd certainly send them a bill for web usage.

Hm. If they're implying you didn't get a formal model release, then doesn't that presuppose that rights, ownership (copyright) is separate from simply having taken (or by extension, received) the photo? Otherwise, how could they claim without a model consent form that you can't make use of it either?

I think the counterclaim hoist them on their own petard. If they didnt' 'consent' to the picture by 'posing' in it (basically consenting to let it be taken), so YOU can't use it, then they can't claim that you consented to their use of it via the process of letting them have a copy, but not including a formal rights or licensing document.

But I'm not a lawyer, which almost guarantees I'm wrong. The Law and Common Sense have almost nothing in relation.

Sounds like they're asshats, frankly. If they'd responded more nicely to begin with you (oh, sorry, isn't that why you sent it to us?) might just say 'go ahead and use it' but at least with attribution and a link to your pics. As you said, you didn't think it was commercial-worthy. But if they've got the stones to fight back, I'd say screw that.

Let us know how it turns out. I've similarly sent out photos but so far none have shown up anywhere but desktops.

I think the counterclaim hoist them on their own petard. If they didnt' 'consent' to the picture by 'posing' in it (basically consenting to let it be taken), so YOU can't use it, then they can't claim that you consented to their use of it via the process of letting them have a copy, but not including a formal rights or licensing document.

Nope, different issues. They could have posed and thought the picture was for them. They would not need a model release for themselves. They will still need the copyright license/grant. For instance if I hire you to take a photo of me, I do not need a model consent for myself, though you still could not use the photo. Of course your copyright would prevent me from using it. But the issue they are throwing out really is a smoke screen and a non-sequitur in terms of the copyright issue.

Nope, different issues. They could have posed and thought the picture was for them. They would not need a model release for themselves. They will still need the copyright license/grant. For instance if I hire you to take a photo of me, I do not need a model consent for myself, though you still could not use the photo. Of course your copyright would prevent me from using it. But the issue they are throwing out really is a smoke screen and a non-sequitur in terms of the copyright issue.

I'll bow to your superior understanding. Still, seem bogus. They say you can't use it, because of lack of papework (model release). But they say they CAN use it, because of ... lack of paperwork (specific declaration of rights with email).

Almost makes me glad I only take pictures for myself (not that anyone else would want them yet, if ever).

Hi Nick, I enjoy keeping an eye of Wetpixel but never post, this topic however is a raw nerve. I have made my living from photography for the past 15 years or so and regularly find my images being use without rights scattered around the web. I used to get myself in a state approaching rage. I once call a lawyer friend who deals in copyright issues and he gave me some great advice as a friend who is a lawyer. The time, costs involved and general aggravation by far out weight the possible remuneration. I have come to the conclusion that there is copyright law and then there is the real world, even if you win, he takes it down and you won the right to say you were right, value? If this is keeping you up at night, it's costing you a lot more than the image is worth, no matter how great the image.

Don't get me wrong, if a major US corporation or publication tried it I would be all over them legally, go ahead hit me I could use the money. It's generally however not that type of entity that steals our images, it the little low life, who cheats on their taxes and always disappears when it's time to pay the tab. Nine times out of ten a polite letter asking them to take down the image works. Then I send a real grubby letter talking about karma and terminal illness (just joking) and let it die, at least it makes me feel better. I did find another way to get at resorts who do this. I contact the large 3rd party travel sites that sell their resort and threaten them, they react very quickly. I had one resort suspended from a few sites for not taking down a stolen image when asked. I never got paid for the image but believe me I caused this guy a whole bunch of trouble, way more then the web usage would have cost him.

I know I'm drifting off topic here, the thread is about inherent copyrights in our images whether implied or stated. However the same feelings and emotions apply, if we can't afford to let things go emotionally when some %$@#$^& steals an image and won't take it down even though we know we are morally right, don't email your images. Unless with huge watermark, warnings in the XML data and a disclaimer. I stopped emailing images a while ago. It's easier to use a flash gallery site like Zenfolio or Smugmug. You only have to post the disclaimer once on the site, I've set it to place a big fat watermark on anything bigger than a thumbnail and because it's flash it makes those right click, "save image as" a lot more difficult. Then just email them a link to the image or gallery.

Nick I wish you the best of luck and I can feel your pain!!! From what I've read you seem to on the right side of this. How about swopping the model release for the (low res) limited web usage rights?

hydraulicphoto, you're right, it usually isn't worth it financially, but the feelings of anger and injustice are nonetheless unavoidable and invariably heightened when the infringer either ignores you or continues to infringe and tries to build some sort of case justifying a blatant infringement.

Recently I had my footage used (with watermark cropped out) without permission in some TV adverts. I suspected they were also infringing the music of a songwriter friend of mine on another advert. I asked him if he'd like to join my case but his reply was that he never ever sues anyone ever to ensure his own personal happiness. He persuades himself to take it as a compliment. Not quite reached that state myself (nor can I afford to), but it is one way to deal with it.

I did find another way to get at resorts who do this. I contact the large 3rd party travel sites that sell their resort and threaten them, they react very quickly.

Interesting idea. However in this case the infringer is actually a diving travel agent, not a resort.

That's too funny about your mate taking it as a compliment! I think I'm going to add that to the bottom of my client list "...and stolen from regularly by numerous websites around the world". The way I look at it is based on an equation that every living organism must use every day to survive, effort versus reward. When the effort to correct the situation out weighs the rewards then it's time to let it go. Just remember, karma is a B@#$h!
Good luck!

Your right in the photo, the "copyright" is an implied right. They can't gain a right to use your work without you express consent. As with any law, there are exceptions. Most notably the right to make a 'fair use' of the work. What is a fair use is determined by the nature of the work, the nature of how the person is using the work, the subtantiallity of the work (meaning are they using a subsection of the work or the whole thing ), and the effect their use will have on your ability to make money.
Here, the work is your photo which they are displaying in it's entirety for their own commercial gain without compensation or permission. In essence they are taking a sale away from you. My opinion is that they are stealing you intellectual property, and that seems rather cut and dry. You should talk to an attorney who can help you solidify and enforce your rights to the extent you which or the extent possible under the law. The real question becomes, what outcome are you looking for?

A similar thing happend to me a few years ago. I was on a dive with young film maker. We exchanged pictures a few days after the dive. Two years went by and we met up on the same boat doing essentially the same dive. At the end of the dive everybody is exhanging cards and phone numbers so that they can share pictures later. In the crowd he was really hesitant to give me his buisness card, but he did. His buisness card was my photograph of him and I had no idea he had been using it! I never perused it but when you talk to people, such events are common.